The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com

Wednesday, March 21, 2012

Wednesday news and notes

Dressed in a dark suit and dotted tie, Goodman recounted the events of the
night of the crash that led to the death of 23-year-old Scott Wilson,
gesturing often with his hands and stammering at times through his responses
in a syrupy Southern accent.
Goodman said he had two shots of tequila and two shots of vodka over the
course of the night. He said he left the Players Club shortly before the
crash on a quest for a Wendy's frosty. After the crash, he said, he didn't
know where he was and certainly didn't realize that Wilson's car had tumbled
into the canal, where he drowned.
"If you knew someone was in the canal, what would you have done?"
"I would have done whatever I could have done to help," Goodman
said, over the objection of prosecutor Ellen Roberts.

U.S. Attorney Jim Letten confirmed this afternoon that Sal Perricone, one of his top prosecutors, has been using the handle "Henry L. Mencken1951" to
bash landfill owner Fred Heebe and a raft of other local and national
figures, including federal judges, in the comments section on NOLA.com.
Perricone "'readily admitted" using the psuedonym, and the matter has
been referred to the Justice Department's Office of Professional
Responsibility, Letten said.

Assistant
U.S. Attorney Sal Perricone 'readily admitted' using the psuedonym, and
the matter has been referred to the Justice Department's Office of
Professional Responsibility, his boss, U.S. Attorney Jim Letten, said.

It will be up to that office to determine Perricone's punishment, Letten said.
Perricone -- whom Letten called a "fine veteran attorney" -- has been
recused from all matters that he discussed in comments on NOLA.com,
Letten said. He said he could not enumerate which cases that might
include.
He added that Perricone, 60, the office's senior litigation counsel, "knows the restrictions and laws under which we operate."

3. The Supreme Court decided today in a pair of cases that defense lawyers can be ineffective at the plea stage before trial. From Lafler v. Cooper:

Where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed.

The Armed Career Criminal Act
has long been a source of confusion for federal judges who are required
to apply it in criminal cases. The act ratchets up sentences to a
mandatory minimum of 15 years for felons who illegally possess guns and
have three prior violent felony convictions. Some judges have
misinterpreted this statute, with grievous results, as happened in the
case of John Joel Foster. He could end up serving 15 years in prison
rather than 27 months for possession of a firearm because the United
States Court of Appeals for the Fourth Circuit wrongly categorized 20-year-old crimes as violent felonies.

Supreme Court argument
on Monday was how large a role the jury must play in setting fines
against corporations found guilty of environmental crimes. But the real
issue in the case, as the justices’ questioning made clear, was whether
the court remained committed to the logic of a 2000 decision that said
the Constitution sometimes bars judges from making factual findings that
lead to increased punishments.

The case arose from the conviction of the Southern Union Company
for storing mercury, a hazardous waste, without a permit. The law the
company violated allowed fines up to $50,000 a day, and the government
contended that the company had violated the law for 762 days. That would
have added up to about $38 million. The trial judge imposed penalties
of about $18 million.

The company objected, contending that the jury had found only that the
company violated the law for at least one day. The federal appeals court
in Boston accepted that view but said it did not matter. The trial judge, it said, was entitled to determine how to calculate the penalties.

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The Southern District of Florida blog was started by David Oscar Markus, who is a criminal trial and appellate lawyer in Miami, Florida. He frequently practices in federal courts around the country, including his hometown, the Southern District of Florida and the 11th Circuit Court of Appeals. He is a former law clerk to then-Chief Judge of the District, Edward B. Davis.